Like the Spice Girls, both buyers and sellers of property need to tell the other party what they ‘really really want’ in a Contract of Sale. If you don’t put what you really really want in a Special Condition then don’t expect it to happen at the settlement of the purchase or sale of that property.
What is a Special Condition?
A Special Condition can add to the current conditions in your Contract of Sale or amend or replace one of the General Conditions in your Contract of Sale. They can be one of the most important aspects of a property sale because they reflect the personal circumstances of the transaction.
TIP: If it’s not in the Contract of Sale then don’t expect the Vendor or Purchaser to do it.
It sounds harsh but people promise things during the negotiation of a property that if they aren’t compelled to do by the Contract of Sale, they simply won’t do. No amount of your real estate agent telling you ‘this Vendor is a really good person’ and ‘dont make the Contract of Sale complicated’ will make any difference.
What can a Special Condition include?
As a rule of thumb, a Special Condition should capture any action that is external to what is in the Contract of Sale. If you want anything to be included that isn’t secured to the property or the Vendor to perform in a certain way before settlement then make sure it is included.
What are some examples of Special Conditions?
- Repairs that the purchaser would like made before settlement of the property.
- Furniture or large items that the Vendor doesn’t want to move with them can be included in the purchase.
- In the case of an investment property, access to the property before settlement so that the Purchaser can show prospective tenants who are looking to move in.
- Subject to building inspection or pest inspection clauses. We talk more about these clauses in this article.
My Contract doesn’t have any Special Conditions…should I be concerned?
If your Contract of Sale doesn’t have any Special Conditions then you need to ask yourself if you expect the Vendor to do absolutely anything except for handing over the property in its’ current condition.
Help! My Contract has a million Special Conditions! They are longer than the General Conditions.
Oh no! Bigger law firms in Australia will include their own Special Conditions which will rip apart the General Conditions and often impose onerous requirements on the Purchaser before settlement.
One common culprit is if you are purchasing an off the plan property. Have a read of our article on understanding Off the Plan Contracts of Sale to better understand why they are so long.
There are also certain technical Special Conditions that are important to include and lawyers would expect to see in Contracts of Sale. So if there are absolutely zero special conditions then you should double check you’ve got the full copy of the Contract of Sale with your lawyer.
